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A.S. Kasinathan Vs. Madras Dock Labour Board - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtChennai High Court
Decided On
Case NumberW.P. No. 5777 of 1980
Judge
Reported in(1983)IILLJ364Mad; (1983)IIMLJ103
ActsIndustrial Disputes Act, 1947 - Sections 2, 11 and 11A
AppellantA.S. Kasinathan
RespondentMadras Dock Labour Board
Cases ReferredUnion of India v. Danak Singh
Excerpt:
.....the working of the industry, and if in such an instance, the management proceeded to dismiss the person, i am unable to see how in this case, the non-consideration of the previous record could vitiate the final order which has been passed under regulation 45 referred to above. regulation 45, however, states that if the gravity of the misconduct standing by itself, would justify the dismissal, and no amount of previous good conduct might affect the gravity of the misconduct. 203 of 1974, will constitute res judicata, for, the petitioner, questioned the validity of the order of dismissal on various grounds and ultimately failed. 9. in this view of the matter, all the grounds urged in the writ petition fail......or aggravating circumstances. regulation 45, however, states that if the gravity of the misconduct standing by itself, would justify the dismissal, and no amount of previous good conduct might affect the gravity of the misconduct. thus, the second contention also fails. 8. coming to the question as to whether the decision of this court in the writ appeal would constitute res judicata, the learned counsel for the petitioner would state that the question that the punishment of dismissal is severe having regard to the charges levelled against the petitioner was not raised in the writ proceedings, and the question was raised only before the industrial tribunal, and for that question the decision in this writ petition cannot constitute res judicata. this contention of the learned.....
Judgment:

1. The petitioner herein was working as a tally clerk in the Madras Dock Labour Board from 1961. In 1971 he was made the President of the Tamil Nadu Port Trust and Dock Labour Board Dressed Classes Workers' League (sangam) registered under the Trade Unions Act, 1926. On 17th February, 1972, a charge memo was workers to stop work and to indulge in an illegal strike. Based on those charges, the Labour Officer initiated a domestic enquiry and found him guilty of the said charges. The Deputy Chairman of the Dock Labour Board thereafter dismissed him from service by order, dated 19th April, 1972. Subsequently, the petitioner filed Writ Petition No. 1347 of 1972, questioning the order of dismissal from service. The writ petition having been dismissed, he filed Writ Appeal No. 203 of 1974. The writ appeal was also dismissed and all the grounds of attack put forward by the petitioner against the order of dismissal were rejected.

2. Subsequently, the petitioner raised an industrial dispute as regards his dismissal from service, and the Ministry of Labour, Government of India, referred the following questions to the Industrial Tribunal by an order, dated 4th March, 1980 :

'Whether the action of the Deputy Chairman, Madras Dock Labour Board, in dismissing Sri A. S. Kasinathan, tally clerk No. 173 employed in reserve pool of the Madras Dock Labour Board from service with effect from 19th April, 1972, is justified. If not, to what relief is the concerned workman entitled ?'

The Industrial Tribunal took up the reference as Industrial Dispute No. 19 of 1980. Before the Tribunal none of the parties examined any witnesses and both parties filed documents and argued their respective cases.

3. Before the Industrial Tribunal, the management contended that the Dock Labour Board is not an industry under S. 2(j) of the Industrial Disputes Act, that the dispute referred to was barred by res judicata in view of the orders passed by this Court in the writ petition as well as in the writ appeal, and that even if the dispute is not barred by res judicata, the dismissal of the petitioner from service was justified on merits. The Tribunal rejected the reference, upholding the said contentions of the management.

4. Aggrieved by the award of the second respondents rejecting the reference, the petitioner has filed the above writ petition. According to the petitioner, the issue 'whether the action in dismissing the petitioner is justified' really consists of two parts, namely :

(1) Whether the finding of the domestic enquiry is justified; and

(2) whether under S. 11A of the Industrial Disputes Act, the punishment of dismissal is proper and justified.

Though the Tribunal has held that the domestic enquiry is justified, it failed to consider whether the punishment was proper and justified, and thus the Tribunal has failed to exercise its jurisdiction under S. 11A. Another ground of attack raised by the petitioner is that incitement to stop work and incitement to indulge in an illegal strike fall under standing orders 15(b)(2) and 15(b)(27) respectively, that even if the charges are found to be proved, it will not generally result in dismissal in the first instance as provided in the standing orders, and that the Tribunal's finding that the dismissal is justified in this case overlooks the said standing orders regarding punishments. It is also contended that the Tribunal, in so far as it has not taken into account the gravity of the misconduct, and his previous record, has contravened standing order 18 which is mandatory. In any event, the Tribunal has erred in holding that the disputed is barred by res judicata that in fact the questions raised in the dispute are entirely different from the questions raised in the earlier writ petition.

5. The learned counsel for the Dock Labour Board contends that though standing orders 15(b)(2) and 15(b)(27) say that ordinarily an incitement to work and incitement to indulge in an illegal strike are treated as minor misconduct not warranting an order of dismissal, in this case, the order of dismissal has not been passed under the standing orders, but under the Madras Dock Workers (Regulation of Employment) Scheme, 1956, which enables the Deputy Chairman of the Board to give a higher punishment under regulation 45(4), and, therefore, the punishment by way of dismissal cannot be said to be contrary to the standing orders. The Board also contends that merely because for awarding a lesser punishment the previous record has not been considered, it cannot be said that the order of punishment is illegal. On the question of res judicata, the Board's contention is that the order of dismissal was challenged in the writ petition as well as in the writ appeal on various grounds, and the Court has rejected all of them, and, therefore, the decision of the High Court should be taken to constitute res judicata in the present case.

6. Dealing with the petitioner's first contention that the order is contrary to the standing orders, it is seen that the standing order 15 has listed acts and omissions, which are treated as misconduct. Clause (a) of standing order 15 sets out the acts and omissions which shall constitute major misconduct, generally meriting dismissal, and Clause (b) of standing order 15 sets out the acts and omissions which shall constitute minor misconduct, not generally resulting in dismissal in the first instance. Instigating another to stop work is shown as misconduct under Clause (2)(b). Similarly participating in illegal strike or inciting workmen to go on illegal strike is listed as item (27) in Clause (b). Therefore, the acts of misconduct committed by the petitioner will not result in dismissal in the first instance. According to the petitioner, though the standing order contemplates a lesser punishment of the charges levelled against the petitioner, the extreme penalty by way of dismissal has been imposed on the petitioner contrary to the standing order. However, it is seen that there is a statutory scheme framed by the Central Government under regulation 4 of the Madras Dock Workers regulates the employment of dock workers. Regulation 45 of the said scheme provides the procedure to which all the employees in the Dock Labour Board will be subjected to. Regulation 45(i)(ii) says that where the personnel officer who has taken cognizance of any misconduct said to have been committed by any employee considers a higher penalty than that contemplated by the standing order is merited, he shall report the case to the Deputy Chairman, who may then cause such further investigation to be made as he may deem fit and take certain steps as regards that employee. Clause (2) of regulation 45 says that a registered dock worker in reserve pool (to which the petitioner belongs) who fails to comply with any of the provisions of the scheme, or commits any act of indiscipline or misconduct, may be reported in writing to the Labour Officer who may after investigating the matter take such steps as regards the worker as are necessary. Clause (3)(a) of regulation 45 says that where a case reported by the Labour Officer under Clause (2), he is of opinion that the act of indiscipline or misconduct is so serious that the worker should not be allowed to work any longer, the Labour Officer may, pending investigation of the matter, suspend the worker and report immediately to the Deputy Chairman, who after preliminary investigation of the matter shall pass orders thereon as to whether the worker, pending final order, should remain suspended or not. Clause (4) of regulation 45 provides that where in the opinion of the Labour Officer, a higher punishment than that provided in Sub-cls. (2) and (3) is merited, he shall report the same to the Deputy Chairman, and the Deputy Chairman, on receipt of the report may dismiss that employee under Clause (5)(e). In this case, as seen from the counter-affidavit, there has been a report by the Labour Officer that the misconduct was quite serious, that the worker should not be allowed to work any longer, and it is on the basis of that report, the deputy Chairman has chosen to dismiss the petitioner after giving a notice to show cause as to why the punishment of dismissal should not be resorted to in his case. Having regard to the provisions contained in the Madras Dock Workers (Regulation of Employment) Scheme enabling the Deputy Chairman to pass an order of dismissal if the misconduct alleged against the petitioner is in his opinion, serious, the petitioner cannot rely on standing order 15(b). Even otherwise standing order 15(b) uses the expression 'generally' which means that in extraordinary situations, the punishment of dismissal can be resorted to even for the case of misconduct set out in standing order 15(b).

7. Coming to the next question whether the order of dismissal passed against the petitioner by the Deputy Chairman is vitiated for the reason that he has not taken into account his past record, the learned counsel for the petitioner refer to the following decisions as supporting his stand. See Borosil Glass Works, Ltd. v. M. G. Chitale : (1974)IILLJ184Bom and Madurai-Devakottai Transport (Private) Ltd., v. Labour Court, Madurai 1976 II LLJ 448. In M. G. Chitale case (supra), and order of dismissal made pursuant to a domestic enquiry was attacked on the ground that while imposing the punishment, the management did not consider the previous record, gravity of misconduct, extenuating or aggravating circumstances as required by standing order 25(6) of the model standing order. In that case, standing order 25(6) was taken as imperative and as the petitioner was awarded the extreme penalty of dismissal without reference to his past record as required under the standing order, the order of dismissal was set aside. In Mahalakshmi Textile Mills, Pasumalai, Madurai v. Labour Court, Madurai, and others : (1963)IILLJ58Mad , a Division Bench of this High Court has observed as follows :

'Where the standing order framed in respect of an industry specifically provides that, in awarding punishments for misconduct of a workman the management shall take into account the gravity of the misconduct, the previous record, if any, of the workman and any other extenuating or aggravating circumstances that may exist, having regard to the mandatory nature of the standing order, there is no option left to the management to neglect these relevant factors. When these factors have not been taken into consideration by the management while passing an order of dismissal of a workman, such order cannot be sustained.'

The learned counsel for the Dock Labour Board relied on the following observations of Ramakrishnan, J., in Solar Works v. Their workmen : (1968)ILLJ765Mad . In that case, it was held that :

'Where the misconduct per set was sufficient to justify the dismissal because of its serious nature, there is no scope at all for entertaining any apprehension that the management failed to give due weight to the provision of standing order 16(3) regarding past good conduct of the workers in fixing the quantum of punishment or that if it had done so, a different result would have followed.'

When the attention of the learned Judge was invited to the decision of the Bench in Mahalakshmi Textiles case (supra), the learned Judge distinguished that case on the ground that where the misconduct of the worker was trifle and trivial, namely, overstayal of leave, and, therefore, when the punishment of dismissal for such a trivial act, which was quite disproportionate, was imposed, the Court felt that the worker's past record should have been taken into account while imposing the punishment. On the facts of this case, I am in entire agreement with the view expressed by Ramakrishnan, J., in the above case. Where the charge held proved against the worker is found to be trivial, but the punishment meted out to the worker on the basis of that charge is severe and disproportionate, the failure on the part of the management to take into account the worker's past record and other extenuating circumstances may be very material, and if his past record had been taken into account, there was every likelihood of the punishment having been less severe. But where a worker is guilty of a serious offence inviting dismissal, very little will turn upon the previous record of the worker. The fact that a person had a previous good record can hardly weigh with the management when it finds that the worker by inciting an illegal strike was paralyzing the working of the industry, and if in such an instance, the management proceeded to dismiss the person, I am unable to see how in this case, the non-consideration of the previous record could vitiate the final order which has been passed under regulation 45 referred to above. Standing order 16(4) merely says that the management shall take into account the gravity of the misconduct, the previous record, if any, of the workman, and any other extenuating or aggravating circumstances. Regulation 45, however, states that if the gravity of the misconduct standing by itself, would justify the dismissal, and no amount of previous good conduct might affect the gravity of the misconduct. Thus, the second contention also fails.

8. Coming to the question as to whether the decision of this Court in the writ appeal would constitute res judicata, the learned counsel for the petitioner would state that the question that the punishment of dismissal is severe having regard to the charges levelled against the petitioner was not raised in the writ proceedings, and the question was raised only before the Industrial Tribunal, and for that question the decision in this writ petition cannot constitute res judicata. This contention of the learned counsel obviously overlooks the fact that what operates as res judicata. This contention of the learned counsel obviously overlooks the fact what operates as res judicata is the decision and not the observation or reasons given by the Court. Though the petitioner did not raise the question which he has urged before the Tribunal, before this Court in the earlier proceedings, still the decision will operate as res judicata. If any authority is needed for the position of law, the decision of the Supreme Court in Union of India v. Danak Singh : (1970)ILLJ10SC , can be refereed to. In that case originally a writ petition was filed to quash an order of dismissal of a civil servant on two alternative grounds and the same was dismissed. Subsequently a suit was filed for a declaration that the order of dismissal was 'illegal, null and void.' One of the grounds urged in the suit was not pleaded in the writ petition and there was no decision of the Court on that point in the writ petition. A question arose as to whether the decision in the writ petition will constitute res judicata as regards the new ground that was urged in the suit. The Supreme Court held that though the provisions of S. 11 of the Code of Civil Procedure, do not apply to writ proceedings, the principle or res judicata contained therein will apply to writ proceedings and, therefore, any decision rendered in writ proceedings will bar any subsequent proceedings for the same relief even though the relief claimed is based on a different ground. In view of the said decision of the Supreme Court, the decision of this Court in Writ Appeal No. 203 of 1974, will constitute res judicata, for, the petitioner, questioned the validity of the order of dismissal on various grounds and ultimately failed. It is no doubt true that the point of severity of the punishment was not specifically raised in the earlier proceedings. But what operates as res judicata is the decision and not the reasons on which the decisions is based.

9. In this view of the matter, all the grounds urged in the writ petition fail. The Writ petition is, therefore, dismissed. However, there will be no order as to costs.


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